Jocelyn Dickhoff, 6, has a rare cancer that wasn’t diagnosed for a year after her mother brought it to a doctor’s attention.

GLEN STUBBE Star Tribune,

Minnesota Supreme Court redefines medical malpractice lawsuits

Article by: ABBY SIMONS

Star Tribune

June 7, 2013 - 10:00 PM

Jocelyn Dickoff was 2 weeks old in 2006 when her mother showed the family doctor a suspicious lump on the little girl’s body. The lump eventually morphed into a rare and aggressive childhood cancer — and has now placed Jocelyn’s family at the heart of a Minnesota Supreme Court ruling that could redefine the rights of patients to recover damages from medical professionals.

In a ruling handed down last week, the high court said Jocelyn’s parents may sue the doctor who, they claim, failed to diagnose her cancer.

Opposing attorneys say the groundbreaking ruling, which allows lawsuits based on the “loss of chance” for medical treatment is an example of judicial overreach that could have a devastating impact on doctors through increased medical malpractice claims.

Meanwhile, the little girl from Belgrade, Minn., has grown into a spunky 6-year-old — nearly as old as her parents’ legal battle. The 3-2 decision means that Jocelyn’s case will return to Kandiyohi County District Court, where her parents, Joe and Kayla Dickhoff, first sued Dr. Rachel Tollefsrud and Family Practice Medical Center of Willmar. The suit alleged that Tollefsrud failed to properly diagnose Jocelyn’s rhabdomyosarcoma before the rare muscular cancer had spread to other parts of her body.

With the ruling, Minnesota joins 22 other states in allowing patients to sue for damages when a doctor’s negligence causes a patient to “lose a chance” of recovery or survival. Previously, the state allowed lawsuits to move forward only in cases of “improbable survival,” or when the chances of survival slip below the threshold of 50 percent.

“The [court] said, ‘We recognize that lost chance of survival as a damage, and Minnesota is going to allow you to recover for that,” said Kay Nord Hunt, who successfully argued the Dickhoffs’ case. “It’s huge — patients now have an avenue of recovery which they didn’t before.”

But an attorney for Tollefs­rud and the clinic said the ruling was not based on legal issues brought up by either side.

“It’s not appropriate for an appellate court to manufacture issues that no party brings before them,” said appellate attorney William M. Hart. Hart said he will ask the Supreme Court for a rehearing.

With the more fluid “loss of chance” in play, lawyers and judges will spend more time hashing out the issue in Minnesota courtrooms, said Sharon Sandeen, a former civil litigator and professor at Hamline University School of Law.

“There’s going to be a lot of evidence presented that’s very hypothetical,” she said. “It gives plaintiffs another theory of recovery, exposes doctors to more liability and it will increase the cost of litigation.”

Mark Whitmore, an attorney for the Minnesota Hospital Association and Minnesota Medical Association who wrote a brief in support of Tollefsrud and the clinic, said the ruling is “troubling” because it lowers the bar for medical professionals to be held liable, and probably will dredge up cases that law firms previously turned down.

Initial suit thrown out

The Dickhoffs sued Tollefsrud and the clinic in 2009, but a Kandiyohi County judge threw out the lawsuit on the eve of trial, reasoning that the Dickhoffs were making a “reduced-chance” medical malpractice claim, which was not recognized in Minnesota. The Minnesota Court of Appeals unanimously reversed the decision last year, determining that Jocelyn would have been more likely to survive had the cancer been diagnosed sooner. Experts hired by the family testified that the yearlong delay in diagnosing her cancer reduced her chances of survival from 60 to 40 percent, or below the threshold of 50 percent. She currently has a 5 percent chance of survival.

Attorneys for Tollefsrud and the clinic appealed to the Supreme Court, which also sided with the family — but for entirely different reasons.

Chance to survive has ‘value’

In his 29-page majority opinion, Justice Paul Anderson rejected the Appeals Court’s “50 percent” ruling. Allowing some patients to sue if their chances dropped from 51 percent to 49 percent, but prohibiting others from suing if their chances dropped from 49 to 0 percent “is unreasonable,” he concluded.

Instead, he wrote, a patient’s chance to survive or recover is something of value, and, if taken away, should be regarded as an injury.

Anderson noted that although the Dickhoffs face an “uphill battle” in winning, they should have an opportunity to try.

In a 23-page dissent, Justice Christopher Dietzen argued that the court’s only job was to determine whether Jocelyn’s suffering was legally caused by Tollefsrud’s negligence.

“The majority disregards this cardinal principle and introduces speculation by concluding that a physician may be liable for harms not directly caused by the physician’s negligence, but caused by the patient’s underlying disease,” he wrote. “In doing so, the majority (without input from litigants) overrules long-standing precedent and upsets an unbroken tradition of (civil) law in this state.”

Chief Justice Lorie Gildea joined Dietzen in the dissent. Justices G. Barry Anderson and Wilhelmina Wright took no part in the decision.

Undergoing chemotherapy

In the meantime, Jocelyn, who turns 7 next week, has finished first grade and is undergoing chemotherapy. Despite her illness, Kayla Dickhoff said, Jocelyn is a normal little girl who loves books, baby dolls and playing with her three younger siblings. Between hospital visits, she’ll be working on her reading skills this summer.

“You have to let kids be kids too,” Kayla Dickhoff said. “So she’ll spend a lot of time outside, when she’s not going through treatment.”